The Tribune

• ‘Not in interests of justice’: Dominican poachers now free

• Sir Michael: Ruling not precedent-setting for Fisheries Act

• Bahamas ‘just scratching surface’ in combating poaching

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal’s president has declined to impose harsher punishment on three Dominican poachers who rammed a Royal Bahamas Defence Force (RBDF) vessel despite branding their original sentences as “lenient”.

Sir Michael Barnett, in a March 18, 2022, oral verdict, said he and his fellow appeal judges, were “not satisfied that it is in the interest of justice” to increase the custodial term imposed upon the trio given that they were due to be released in a week’s time as per the original sentence.

This timeline suggests that the Dominicans, who last September were among five arrested when their vessel, Amanda, sought to evade capture by ramming HMBS Bahamas, have likely been freed after mere months in jail and are probably by now back in their homeland.

The original sentence, by Justice Bernard Turner at the Supreme Court, sparked outrage and fury among Bahamian fishermen because it sent the message to potential poachers that they can still expect minimal punishment if caught in this nation’s territorial waters despite the supposedly-tougher sentences and fines contained in the recently-passed Fisheries Act.

The Court of Appeal’s verdict did little to improve the mood yesterday. While acknowledging that the appellate court had been put in a difficult position, Paul Maillis, the National Fisheries Association’s (NFA) secretary, told Tribune Business that The Bahamas was just “scratching the surface of the poaching issue” and needed to “pursue” the owners and financiers of the vessels involved and their processing operations.

Until The Bahamas did this, he argued that the money men and those earning the bulk of profits generated from poaching in Bahamian waters will continue to view it as a “high return” activity with “low risk” of being caught and appropriately punished.

Court filings obtained by Tribune Business reveal that the director of public prosecutions, Franklyn Williams, moved swiftly to appeal the initial sentences against Sandy Garcia Peralta, Edwin Cabrera Rayclar, Rubin Dario Sanchez and Juan Almante Luntigua after the Supreme Court’s end-February verdict meant they would only be held in Fox Hill prison for one more month. 

The appeal was filed on March 10, and Sir Michael in his oral judgment said: “We have given anxious consideration to this proposed appeal. The appeal filed on March 10 is an attack on the sentence of nine months imposed by the judge. Although the Notice of Appeal does not specify the ground of appeal, we  moved on the basis that the ground of appeal is in fact that the sentence is unduly lenient.

“We have considered the arguments. Whilst we recognise that the Fisheries Act 2020 imposed higher penalties than the previous legislation, and that is a fact that judges or sentencers must take into account in imposing sentence under the Fisheries Act 2020, we are not satisfied that, in the particular circumstances of this case, we ought to interfere with the exercise of the discretion by the sentencing judge.”

Sir Michael asserted that the sentences imposed will not set a precedent for future Fisheries Act prosecutions, and agreed with Bahamian fishermen when he said: “The nine months is lenient. It is not to be regarded as a precedent, or we do not think it is useful as a precedent, but we do not believe that, in the circumstances of this particular case, we ought to interfere with the exercise of the discretion by the sentencing judge.

“The sentence imposed by the judge comes to an end in a week’s time. We are not satisfied that it is in the interest of justice to now increase it. The appeal is therefore dismissed and the sentences are affirmed.” The reference to a nine-month sentence does not match the timeline established by the Amanda’s capture, which occurred more than six months ago in late September 2021.

Mr Maillis, who previously told this newspaper that the sentence was six months, yesterday confirmed that Bahamian attorney Philip Lundy, who represented the Dominicans before the Court of Appeal, also acted for them in the Supreme Court case he witnessed before Justice Turner. One of the four was said to have died while in custody, leaving the surviving three to be released and likely return home.

“I can tell you right now there’s not a single person in the fishing industry that will be happy with the decision,” Mr Maillis said of the Court of Appeal verdict. Nevertheless, “speaking with my legal scholar’s hat”, he conceded that it was hard for the Court of Appeal to intervene with sentences unless there was “a clear violation of what the law allows” or it was a “hugely egregious error”.

“I agree with president Barnett that this type of result cannot be a precedent,” the NFA secretary said. “Moving forward, we have to learn from the mistakes and implement the intent of the Fisheries Act, which is to impose harsher penalties that are a strong deterrent to poachers. We need to get it right first time so that we do not need to go to the Court of Appeal.”

Some 5,420 pounds of hogfish; 2,213 pounds of Nassau grouper; 11,267 pounds of whole lobster; 276 pounds of lobster tails; and 1,685 pounds of other assorted fish - all illegally harvested from Bahamian waters - was found aboard the Amanda when it was seized by HMBS Bahamas after the ramming attempt was foiled.

“This is what Bahamian fishermen have been complaining about and pushing for stronger action on for years, decades,” Mr Maillis told Tribune Business. “The message and results have been consistent. There is very little jeopardy in poaching in these waters, and there very few financial consequences if you participate in these activities.

“We don’t pursue the owners and financiers of these vessels; we don’t pursue the beneficiaries of this poaching. We don’t do follow-up law enforcement work. We don’t strike at the heart of poaching. We don’t strike at the markets who are sending them. Until we do that, we are really scratching the surface of the poaching issue.”

Given that the poaching vessels, their owners and financiers are all likely located abroad, largely in the Dominican Republic, The Bahamas will find it difficult to take action against those earning the real profits unless it can obtain co-operation from its fellow Caribbean state and other international law enforcement authorities. Dominican Republic co-operation will likely be hard to obtain.

Meanwhile, Mr Maillis said the failure to enforce the Fisheries Act’s sentences and fines to their fullest extent continued to show poachers that they will likely suffer minimal consequences for illegal fisheries activity in Bahamian waters. 

“What makes it worse is these financiers and people sending the boats out know the risk is not that great,” he asserted. “They can do whatever they need to do to escape. They will not be charged with trying to escape law enforcement or assaulting law enforcement. They only thing they will be charged with is fisheries offences, not Immigration offences, not penal code offences.

“You’re going to be out in six to eight months, and you do not have to worry if you cannot pay the fine. That’s the message, that’s the message. You can go out and earn millions of dollars in illegal fisheries and, if caught, we’ll make it back up to you in the Dominican Republic. How many trips did these guys make before they were caught? How many trips were successful? These people are not throwing away their money; they know they will get a return on their investment.”

Dominican boats could bring illegal fisheries catches from Bahamian waters worth between $700,000 and $1m, Mr Maillis said, whereas the vessels involved were often worth just $50,000 with an additional $30,000 expense to outfit them. As a result, poaching was viewed as a high return/low risk practice with any losses quickly made good.